The Brexit Case: The Reasoning, Implications and Potential Consequences of the High Court's Judgment

The Brexit Case: The Reasoning, Implications and Potential Consequences of the High Court's Judgment
2016-11-06

This post is an expanded version of his note that appeared in the Press & Journal on Friday 4 November 2016.

Following the decision of 52% of the UK electorate to exit the European Union (EU) on 23 June 2016, Prime Minister Theresa May has been steadfast in her belief that the power to initiate the UK’s exit from the EU lay with the Government under the ‘royal prerogative’ and not with Parliament. On Thursday 3 November 2016, however, the High Court of Justice in England gave its highly anticipated judgment in the Brexit Case (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)), ruling that the UK Government must seek parliamentary approval before exiting the EU. This blog post will briefly outline the reasoning of the High Court in reaching its decision, as well as its implications and potential consequences.

Justiciability and the Irrevocability of Article 50

Before considering the reasoning of the High Court, two points must be stressed.

Firstly, all parties to the case, including the Government, accepted that the matter before the Court was entirely justiciable. In other words, that it concerned a legal matter that the courts are best placed to decide.

Secondly, the case proceeded on the basis that Article 50 – the legal mechanism by which a Member State may formally leave the EU – once triggered, could not be revoked.  In other words, the UK will be unable to change its mind and stop Brexit once notice has been given under the provision. Although the accuracy of this interpretation has been questioned on this blog, it must be stressed that the Court did not have to make a ruling on this matter as both parties were in agreement that Article 50 was irrevocable.

The High Court’s Reasoning

The central question before the Court was whether the UK Government can use the royal prerogative to give notice of the UK’s intention to exit the EU under Article 50 as it claimed. The royal prerogative is the body of executive powers held by the Monarch but which is now mostly exercised in practice by Government Ministers.

The High Court rejected the Government’s argument, deciding that the royal prerogative could not be used without parliamentary approval.  According to the Court, triggering Article 50 without Parliament’s approval would have the effect of removing the rights currently enjoyed by UK citizens by virtue of the UK’s membership of the EU both at home and abroad.  Examples include workers’ rights, freedom of movement across the other EU Member States, and the right to vote in elections to the European Parliament. When the UK joined the EU in 1973, Parliament first had to pass the European Communities Act 1972, which gave domestic effect to EU law.  As a result, EU law became part of UK law, and citizens could thereafter bring actions for breach of EU law, including their EU rights, in the domestic courts. The Court decided that, in passing the 1972 Act, Parliament did not intend to allow the UK Government to take away these rights unilaterally.  To do otherwise would be to change the domestic law of the UK as enacted by Parliament, and only Parliament had the power to do so because it was legally sovereign.

The Court’s decision therefore makes it clear that the Prime Minister now needs Parliament’s consent before Article 50 can be triggered.  The implication of the decision is that this approval must take the form of primary legislation, thus making a one-off vote in the House of Commons insufficient.  Unsurprisingly, the decision of the High Court, and the necessity for legislation, could have potentially far reaching consequences.

The Future of Brexit

The High Court’s decision represents a serious setback for the UK Government, and the Prime Minister is already under considerable pressure to concede and comply with the decision. Although the Prime Minister had said that she would trigger Article 50 in March 2017, this looks to be in doubt should she be compelled to put the matter before Parliament for legislative approval.  Whilst this may only result in a delay in the triggering of Article 50, Parliament could also decide to block the UK’s exit from the EU altogether.  Whether or not Parliament would do so, however, is unclear.  Although not legally required to follow the referendum result, political forces both within and outwith Parliament may compel members to go ahead with Brexit, albeit perhaps on terms different from what the current Government wants.

Even if the elected House of Commons consents to any Bill authorising the triggering Article 50, however, Theresa May will likely face strong opposition from the unelected House of Lords.  Because leaving the EU was not a manifesto commitment of Theresa May’s newly-formed Government, the Salisbury Convention will not be engaged, and the Lords will not be compelled constitutionally to approve the legislation as a result. (It will be recalled that conventions are very important to the House of Lords, as I explored in a post on this blog and a related post for the UK Constitutional Law Association.) This may necessitate, therefore, the use of the Parliament Acts 1911 and 1949 to ensure the Bill’s passage through Parliament, which will further delay Brexit.

The UK Supreme Court

Whether or not Parliament will ever be given a say, however, is still far from settled, as the UK Government have said that they will appeal the decision to the UK Supreme Court in the hope that it will be overturned. The case is expected to be heard in December before a panel of 11 Justices for the very first time in history. A judgment is expected sometime in the New Year.  Although the case was heard in England and concerned a matter of English Law, Nicola Sturgeon and the Scottish Government may formally intervene in the legal proceedings. The Welsh Counsel General has indicated his intention to apply to intervene, in accordance with the Government of Wales Act 2006. Withdrawal from the EU will unquestionably impact upon the UK’s devolutionary settlement, and the UK Supreme Court has jurisdiction to decide devolutionary matters.

An Early General Election

Although there is speculation in the media that the Prime Minister could call an early General Election to try and receive a mandate from the public on pursuing her vision of Brexit, it must be stressed that she does not in fact have the power to do so. The Fixed-term Parliaments Act 2011 abolished the prerogative power of the Crown, exercised by the Prime Minister, to call a general election, and gave that power to the House of Commons.  In order to have an election before 2020, therefore, Theresa May must lose a vote of no confidence, or two-thirds of the Commons must agree to call one. Should the Government lose their appeal at the UK Supreme Court, a vote of no confidence in the Prime Minister is possible given the Conservative party’s narrow majority in the House of Commons.

What next?

That is a good question. As noted by my colleague Dr. Justin Borg-Barthet, the one thing we can be sure of is we still cannot be quite sure what Brexit means.

On Tuesday 8 November at 18:00 the University of Aberdeen will be hosting a free guest lecture by Dr. Holger Hestermeyer, How will Brexit Happen? Legal Questions Faced by the UK. Details can be found here.

This post is by Dr Robert Brett Taylor.

Published by School of Law, University of Aberdeen

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